Oklahoma Bar Journal
Objective Versus Subjective Standards in Negligence Per Se
How To Craft Viable Negligence Per Se Claims and How To Challenge Improper Claims
By William “Alex” Orr
Negligence per se is often introduced to law students as a seemingly straightforward doctrine: when a defendant violates a statute, liability for negligence may follow. Yet this simplified understanding obscures a critical limitation embedded within the doctrine – namely, not all statutory violations are created equal. While negligence per se allows courts to adopt legislatively prescribed standards of conduct, its application depends on whether the statute imposes a fixed, objective duty, rather than a flexible, circumstance-dependent standard. This distinction, though frequently overlooked in both academic instruction and early practice, has become increasingly significant in Oklahoma jurisprudence. As recent decisions illustrate, statutes incorporating subjective terms such as “reasonable,” “prudent,” or “safe” fail to establish the kind of definitive rule necessary to support negligence per se, instead relegating the claim to traditional negligence analysis.
Negligence per se is, of course, a term used when a duty of care is based on a violation of specifically prescribed conduct required by a statute.[1] When courts adopt the statutory standard for a cause of action for negligence, the violation of the statute constitutes negligence per se if the other elements of negligence are present.[2] In order to establish negligence per se on the basis of statutory violation, a party must show that the injury was caused by the statute’s violation, the injury was of the type intended to be prevented by the statute, and the injured party was a member of the class meant to be protected by the statute.[3] These are the elements of negligence per se in Oklahoma and mirror the elements found in the Restatement on Torts.[4]
While the violation of a statutory duty imposed for the protection of person or property constitutes negligence per se generally, the standard of duty within the statute must be fixed and defined by law, and be the same in all circumstances.[5] In other words, where a negligence per se instruction does not impose positive, objective standards, it is inappropriate because determination of whether conduct measures up to the standards of conduct enjoined by the statute depends on the conditions and circumstances proved and requires evaluation of the evidence.[6] The issue becomes then one of general, common law negligence, not of negligence per se.[7] In essence, where violating the specific language of the statute depends on the conditions and circumstances proved and requires evaluation of the evidence, that statue cannot serve as an appropriate basis for negligence per se and requires a general negligence analysis instead.[8] This specific caveat in the negligence per se framework intrinsically makes sense: When a statute incorporates the ordinary negligence standards, negligence per se cannot apply because the statue does not establish a specific standard of conduct different from the common law standard of ordinary care.[9] This standard is the status quo in other jurisdictions as well.[10]
Using Objective Standards to Craft Negligence Per Se Claims
When making negligence per se claims in furtherance of a client, attorneys should be cognizant of the positive, objective standards required to support such claims.[11] The Oklahoma Court of Civil Appeals determined the sufficiency of 47 O.S.1981 §14-106 as the basis for negligence per se in Murry v. Advanced Asphalt Co.[12] The statute mandated chains “sufficiently strong to prevent parting of the trailer from the drawing vehicle,” and the court determined that towing a trailer without these required safety chains constituted negligence per se.[13] Despite this somewhat qualitative language about chain strength, the Court of Civil Appeals determined that the statutory requirement was fixed enough to establish a clear duty.[14]
Consider also, for example, 27 O.S. §2-6-105(A), which the 10th Circuit, applying Oklahoma law, determined to be a viable basis for a negligence per se claim in Lazy S Ranch Properties, LLC v. Valero Terminaling and Distribution Company.[15] Section 2-6-105(A) prevents pollution of any waters of the state, with the statute’s declaration of policy stating that it is public policy to provide that no waste or pollutant be discharged into any waters of the state or otherwise placed in a location likely to affect such waters.[16] The 10th Circuit not only allowed such standard to support a negligence per se claim here, but explained that the court had previously recognized that this specific statute may impose a duty to prevent pollution under Oklahoma law.[17] This holding underscores the type of statutory language capable of supporting negligence per se: a clear, affirmative prohibition that does not depend on case-by-case determinations of reasonableness. Unlike statutes that hinge on subjective qualifiers, §2-6-105(A) establishes a concrete, enforceable standard: Pollution is simply not permitted.[18] In that sense, liability turns on whether a discharge occurred and whether it affected protected waters, not on whether the defendant acted “reasonably” under the circumstances. Accordingly, Lazy S Ranch illustrates how statutes framed as categorical prohibitions or mandates are far more likely to satisfy the objective standard requirement necessary to sustain a negligence per se claim.
From a practical standpoint, Murry and Lazy S provide a useful blueprint for crafting viable negligence per se claims. First, counsel should identify statutes that impose concrete, affirmative duties, such as requirements for specific conduct or to refrain from specific conduct.[19] These statutes often contain language tied to observable or testable conditions (e.g., presence of equipment, compliance with numerical thresholds, or adherence to defined procedures). Second, the statutory violation should be capable of proof independent of a broader reasonableness analysis. If proving the violation requires the same type of evidence and argument similar to common law negligence, such as whether conduct was “reasonable under the circumstances,” the claim likely collapses into ordinary negligence.[20] Third, attorneys should frame the claim around the statute’s specific mandate, emphasizing how the defendant’s conduct failed to meet that mandate in a clear, binary way.[21]
Identifying Subjective Standards to Challenge Negligence Per Se Claims
When challenging a negligence per se claim, through a dismissal motion or a summary judgment motion, attorneys should be cognizant of the subjective standards that may make the referenced statute inapplicable for supporting a negligence per se claim. The Supreme Court of Oklahoma gave clear guidance on this principle in Wade v. Reimer, where the court considered the applicability of 47 O.S.Supp.1955 §121.3(a) to serve as the basis for a negligence per se claim.[22] The provisions of that statue declared that a vehicle shall be operated “at a careful and prudent speed not greater nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and any other conditions then existing, and no person shall drive at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.”[23] Per the court, the terms of this statute did not impose any positive objective standards, nor did they prescribe any greater or lesser degree of care than that required of a driver under the prevailing rules at common law.[24] Before a driver may be found to have violated this statute, the jury would necessarily have to conclude that the driver’s actions amount to common law negligence, which thus made any negligence per se instruction redundant.[25] The court deemed it was fundamental error to provide the jury a negligence per se instruction under these circumstances.[26]
Unlike the objective statutes discussed above, such as the safety chain requirement in Murry and the categorical prohibition against pollution in Lazy S Ranch, §121.3(a) did not establish a fixed, measurable rule of conduct. From a practical standpoint, words and phrases such as “reasonable,” “prudent,” “safe,” “proper,” “appropriate,” “disregard,” or “due regard” are strong indicators that the statute does not impose a bright-line rule.[27] Likewise, statutes that explicitly require consideration of surrounding conditions, traffic, weather, visibility, or other circumstances, signal that compliance can generally not be determined without contextual judgment.[28] These features should be highlighted to demonstrate that the statute lacks the fixed standard required for negligence per se.
Procedurally, this argument can, and should, be raised early and often. At the pleading stage, counsel can argue that the cited statute fails as a matter of law to support negligence per se because it lacks an objective standard. At summary judgment, the same argument can be reframed to show that, even taking the facts in the light most favorable to the plaintiff, the alleged violation depends on a subjective evaluation reserved for ordinary negligence. In either posture, the goal is to force the claim out of the negligence per se framework and back into the traditional, fact-intensive negligence analysis.
Practitioner’s Takeaway
In the end, the story of negligence per se is not one of automatic liability simply because a statute is cited, but of careful line-drawing between rules and standards. As discussed at the outset, what begins as a seemingly straightforward doctrine quickly reveals itself to be far more nuanced in practice. The cases and principles explored above demonstrate that the true dividing line is whether the statute at issue supplies a fixed, objective command or merely echoes the flexible, circumstance-driven inquiry of ordinary negligence. When a statute operates as a bright-line rule, it can transform a negligence claim into a clear question of compliance. But when the statute depends on terms like “reasonable,” “prudent,” or “proper,” it collapses back into the same fact-intensive analysis that governs common law negligence.
The practitioner’s task is not simply to identify a statutory violation, but to critically evaluate the nature of the duty imposed. Crafting viable claims and dismantling improper ones requires returning to that foundational principle: Negligence per se applies only where the law itself has already defined the standard of conduct in objective, unmistakable terms. Anything less is not negligence per se at all, but negligence in its traditional form. In that way, the doctrine comes full circle, reinforcing the lesson introduced at the beginning: The law does not reward rote invocation of statutes, but careful, disciplined analysis of what those statutes actually require.
ABOUT THE AUTHOR
William “Alex” Orr is an attorney with Coffey, Senger, Hancock & Harmon PLLC in Tulsa. His practice centers on appellate advocacy, complex motion practice, and legal research in state and federal courts. Mr. Orr focuses on developing persuasive written advocacy, including dispositive motions, appellate briefs, and other high-stakes litigation filings, with an emphasis on thorough legal analysis and strategic argument development.
ENDNOTES
[1] Smith v. Barker, 2017 OK CIV APP 69, ¶27, 419 P.3d 327.
[2] Mansfield v. Circle K .Corp., 1994 OK 80, ¶6, 877 P.2d 1130.
[3] See, e.g., Hamilton v. Allen, 1993 OK 46, ¶9, 852 P.2d 697; see also Ohio Cas. Inc. Co. v. Todd, 1991 OK 54, ¶8, 813 P.2d 508.
[4] Id; Restatement (3d) on Torts: Liability for Physical Harm (adopted 2005; published 2010), §14: Statutory Violations as Negligence Per Se.
[5] Smith, 2017 OK CIV APP at ¶29; Chicago, R.I. & P. Ry. Co. v. Pitchford, 1914 OK 79, 143 P. 1146 (court syllabus).
[6] Smith, 2017 OK CIV APP at ¶29.
[7] See Wade v. Reimer, 1961 OK 44, ¶5, 359 P.2d 1071 (involving a statute which required a vehicle be operated at a careful and prudent speed not greater nor less than is reasonable and proper); cf. Smith, 2017 OK CIV APP at ¶¶21-23 (involving a statute requiring that a vehicle yield the right-of-way, while turning on a steady red light, to a pedestrian and other traffic lawfully within an adjacent crosswalk).
[8] Smith, 2017 OK CIV APP at ¶29.
[9] See Orthman v. Premiere Pediatrics, PLLC, 2024 OK CIV APP 7, 545 P.3d 124, 134 (approved for publication by the Oklahoma Supreme Court); see also Armstrong v. Health Care Serv. Corp., 2023 WL 359519, Case No. 22-CV-377-CVE-JFJ, at *5 (N.D. Okla. Jan. 23, 2023) (dismissing negligence per se because “the statute fails to provide any positive objective standards that can easily be applied to determine if a defendant’s conduct violates the statute, and the finder of fact would be required to evaluate the facts and apply ordinary negligence principles to determine if the defendant violated a tort duty to the plaintiff”).
[10] See, e.g., Ibarra v. Gastelum, 249 Ariz. 493, 471 P.3d 1028, 1030-31 (where the Arizona Court of Appeals explained that “Negligence per se is limited to situations involving a specific legal requirement, not a general standard of care. To provide the basis for a negligence per se claim, a statute must proscribe certain or specific acts … Therefore, if a statute defines only a general standard of care … negligence per se is inappropriate.”) (cleaned up); Boyd v. Moore, 919 N.E.2d 283, 287 (Ohio Ct. App. 2009) (where the Ohio Court of Appeals stated in simple terms, if “a determination of statutory compliance requires a subjective analysis,” negligence per se will not apply); Supreme Beef Packers, Inc. v. Maddox, 67 S.W.3d 453, 456 (Tex. App. 2002) (where the Texas Court of Appeals stated that, “Where a statute incorporates the ordinarily prudent person standard, negligence per se does not apply because the statute does not establish a specific standard of conduct different than the common-law standard of ordinary care. In those cases, it is redundant to submit a question on the statutory standard or to instruct the jury regarding it, and the negligence per se standard is subsumed under the broad-form negligence question.”) (cleaned up); see also Rains v. Bend of the River, 124 S.W.3d 580 (Tenn. Ct. App. 2003) (explaining the same for Tennessee law); Kentucky Fried Chicken of Cal., Inc. v. Superior Court, 14 Cal.4th 814, 59 Cal.Rptr.2d 756, 927 P.2d 1260 (Cal. 1997) (explaining the same for California law); Borns ex rel. Gannon v. Voss, 70 P.3d 262 (Wyo. 2003) (explaining the same for Wyoming law).
[11] Smith, 2017 OK CIV APP at ¶29.
[12] Murry v. Advanced Asphalt Co., 1987 OK CIV APP 88, ¶¶8-12, 751 P.2d 209.
[13] Id.
[14] Id.
[15] Lazy S Ranch Properties, LLC v. Valero Terminaling and Distribution Company et al., 92 F.4th 1189, 1201-02 (10th Cir. 2024).
[16] Id.
[17] Id. (citing BP Pipelines (N. Am.) Inc. v. C.D. Brown Const., Inc., 473 F. App’x 818, 828 (10th Cir. 2012).
[18] Id.
[19] Murry v. Advanced Asphalt Co., 1987 OK CIV APP at ¶¶8-12, 751 P.2d 209; Lazy S Ranch Properties, LLC v. Valero Terminaling and Distribution Company et al., 92 F.4th at 1201-02 (10th Cir. 2024).
[20] Orthman, 2024 OK CIV APP at ¶24.
[21] Id; Chicago, R.I. & P. Ry. Co. v. Pitchford, 1914 OK 79, 143 P. 1146 (court syllabus).
[22] Wade, 1961 OK at ¶5.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id; see also Conway v. Lone Star Transp., LLC, 2020 WL 609750, at *3 (N.D. Okla. 2020) (holding that “driving a vehicle ‘in willful or wanton disregard for the safety of persons or property’ is not a positive objective standard”).
[28] Athey v. Bingham, 1991 OK 82, ¶9, 823 P.2d 346 (citing Agee v. Grant, 1966 OK 31, 412 P.2d 155) (where Oklahoma Supreme Court recognized that a statute requiring drivers to be able to stop within clear distance depends on physical conditions at the time and place; whether the statute was violated depends on the circumstances proved).
Originally published in the Oklahoma Bar Journal – OBJ 97 No. 6 (August 2026)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.